Friday, August 31, 2018

Sponsored Post: The unauthorized practice of law for nonlawyers

The dramatic changes in the legal profession since the 2008 market crash, from the increase in virtual law practice to the rise of DIY services to clients’ increasing demand for efficiencies, have led to a recognition that nonlawyers have an increasingly critical role in the delivery of legal services. While most regulatory bars are not yet sure exactly: (a) what this role should be; or (b) how, if at all, it should be regulated, that a change is coming is certain.

Meanwhile, companies large and small -- saddled with increasing regulations but fewer resources – look more frequently to employees in risk management, compliance, and human resources, to name but a few, to exercise legal judgement, decreasing the reliance on traditional inside and outside counsel.

When the ABA created the Commission on the Future of Legal Services, with a goal of using technology and innovation to increase access to justice, the President acknowledged that some people see this shift as a “back doorway of disrupting a system that they’re comfortable with.” All a perfect precursor to the coming regulatory challenges for our current restrictions on the unauthorized practice of law.

In response, education directed at nonlawyer legal professionals is also increasing; the providers include law schools, other higher education entities, trade associations, and for-profit companies. However, little of this education is focused on the unauthorized practice of law. As the debate is getting hotter over what nonlawyers, people or computers, can do without running afoul of unauthorized practice of law restrictions, education must include coverage of the current state of the law, no matter how impossible it may be to define the “practice of law” with precision.

To bridge this gap, our new book and interactive course, The Unauthorized Practice of Law for Nonlawyers, explores the extent to which people with legal training, but no license to practice, can use the law, as a social and economic variable, to better manage risk without fear of prosecution or civil liability. Materials include a complete, 1-credit course syllabus, with over 4-hours of videos and 700-minutes of direct-faculty contact hours through discussion prompts and project prompts, perfect for an active-learning, flipped classroom. Alternatively, the materials can be used as a 1-hour self-directed module.The book is intended for general education about the UPL and to provoke informed thinking and useful discussion about the UPL’s present and future boundaries. UPL regulation varies widely across the country, is always and everywhere highly fact-specific, is riddled with non-uniform, judicial and legislative exceptions, and always is decided on a case-by-case basis. But even with this uncertainty, educators must promote and provide for the exploration of these issues.

Kai-zen and Poka-yoke in the Classroom

Even when I'm not doing a whole new prep, in the spirit of kai-zen ("continuous improvement"), I like to tinker with the form and the substance of a class. Sometimes the tinkering is fairly substantial. Several years ago, the authors of my contracts casebook decided to produce another edition. I respectfully declined to adopt it, not believing that there were sufficient advances in the law of contracts to justify having students buy a newly-issued book. But, upon discovering that there weren't enough copies of the old edition in circulation to be sure students could get them, I decided to scrap the casebook entirely, download and edit the cases myself, post them on Blackboard, and assign the very good Examples & Explanations book as the text.

If you aren't familiar with it, kai-zen is a fundamental aspect of lean manufacturing, something that had its roots in the Toyota Production System in Japan after World War II, and migrated to the United States and elsewhere in the 1980s and 1990s. In first year contracts, I came up with two improvements yesterday, as usual in the several hours before the first class was to begin.

The first was substance. I record all my classes and post my notes as soon as we are done with a unit. I decided that I wanted the very first thing that I said on the very first day to be something to which the students could return when, as I put it, later in the semester they got frustrated with the material, me, the book, the cases, or why they made the decision to go to law school in the first place.

The second was form. As I've mentioned, I don't impose a seating chart, and my cold-calling tends to be half-hearted at best, and tails off over the course of the year. I do, however, start with "on-call" panels, and I do like to know something about my students. In past years, I have simply given them blank index cards with the instruction to write their names and other information. But, regardless of the instructions, students have managed to leave stuff out, write on the back of the cards, fill the cards so that I can't put pictures on them, etc. I have also struggled with how to take that information and use it (a) to organize the panels, and (b) have the information, including their pictures, readily accessible as I have to find them in the classroom (because I don't use seating charts).

So I called on another lean manufacturing concept - "poka-yoke" or "inadvertent mistake prevention." The idea on the manufacturing floor is that you set the process so that the operator can't make a mistake without shutting things down. Instead of having two similar and identical holes for which the inserted piece could get reversed, you make the holes into different shapes and non-symmetrical. It occurred to me that, if I just did a little poka-yoke on the cards, I would get the information just as I wanted it, and with a space in which to insert a picture.

Voila! What you see above, which took about 90 seconds in Word to create, and which could be duplicated on 4 x 6 index cards. To create the panels, I just shuffle the cards and separate them into groups. To call on students, I just reach for a card.

Interdisciplinary Projects

I have enjoyed my time here blogging, and many thanks again to Rick and Howard for having me. In my last post, I thought I would discuss an interdisciplinary project I have been working on.

Last year, I applied for a large, internal university grant to try out some interdisciplinary projects. The goal was to spend a year investigating a significant corporate scandal with colleagues from around the university in an effort to come up with a “super solution.” When I wrote the grant proposal, I used the General Motors ignition switch scandal as an example of what one might investigate. The original grant proposal envisioned a three-year project, which would have allowed three areas of study.

I was instead offered a more modest grant to test out the idea. By the time the award was provided, the #MeToo movement was in full swing, so I changed the topic of inquiry to sexual harassment within organizations. Ultimately, we had participants from law, management, economics, philosophy, and journalism. Each participant wrote a small three to five page paper addressing the sexual harassment crisis within organizations from their scholarly discipline and expertise. We then had a one-day conference where we presented our solutions, and we had two senior external scholars attend to comment and provide additional input. Ultimately, we walked away with two potential theses, and a few of us are currently working on a paper.

One of the proposed uses of the grant award in the original proposal was to provide research funding for contributors as an incentive to participate. Every department at Notre Dame has its own publication expectations, so I worried that people might need an incentive to participate in interdisciplinary work. When I received the more modest grant, however, I dropped the attempt to provide the incentive. As it turned out, each person I approached agreed to participate except for one, and the one person who declined instead provided some additional funding for the project.

For the those of us working on a writing project together, we have determined that we may be able to publish three articles—one each in a management, law, and economics journal—related to one of the theses we identified. We would of course emphasize different points in each publication. I think this is in actuality a better incentive than research funding would have been. We identified a thesis that hasn’t been written about in our respective disciplines, and we have identified related projects that we can tackle for the purpose of publishing pieces in those disciplines. This provides us each a publication opportunity that “counts” in our departments, but it also broadens the potential impact of our work. This is still very much an experiment, but it does seem as if it is an experiment worth attempting as the potential upside is quite high.

With that, I close my stint here at Prawfs. I had some more half-written blog posts, but my 1Ls are happy, eager, and love sitting in my office. Until next time!

Thursday, August 30, 2018

Call for Papers for Section on Administrative Law Program at the 2019 AALS Annual Meeting

My awesome colleague Mila Sohoni sends word:

The Section on Administrative Law is pleased to announce a Call for Papers from which one or two additional presenters will be selected for the Section’s program to be held during the AALS 2019 Annual Meeting in New Orleans, LA.

Form and length of submission:

The panel is titled “Presidential Control of Administrative Agencies,” and will be held on Thursday, January 3, 2019 from 1:30-3:15. The Section welcomes submissions on any topic relevant to presidential influence or control over administrative agencies, with a (non- exclusive) focus on issues pertaining to President Trump’s interaction with the administrative state.

Submissions may take the form of abstracts or more complete drafts, but preference will be given to more developed projects.

Submission method and due date:

Submissions should be anonymized. They should include a coverpage with the author’s name and contact information. The cover page should be the only part of the submission that includes any identifying information for the author.

Submissions should be sent electronically to Professor Lou Virelli at [email protected]. The due date for submissions is Friday, September 7, 2018.

Submission review:

Papers will be selected after review by members of the Executive Committee of the Section. The author(s) of the selected paper(s) will be notified by Monday, September 24, 2018. The Call for Papers presenters will be responsible for paying their conference registration fee and hotel and travel expenses.

Inquiries or questions:

All inquiries should be submitted to Lou Virelli at Stetson University College of Law (lvire[email protected]/ 727-562-7329).

POSITION ANNOUNCEMENT - DIRECTOR OF THE ENTREPRENEURIAL/TRANSACTIONAL LAW CLINIC AND ASSISTANT/ASSOCIATE/PROFESSOR OF LAW

DRAKE UNIVERSITY LAW SCHOOL invites applications for the position of Director of the Entrepreneurial/Transactional Law Clinic. The position will begin in the 2019-2020 school year, and will be a twelve-month position. The directorship could be annual or long-term contract, or tenure-track, depending on the candidate’s qualifications and preferences. Duties will include supervising and assessing Clinic students representing nonprofit organizations and emerging entrepreneurs. The Clinic primarily focuses on assisting startup businesses and nonprofits in underserved communities in Polk County, Iowa that are not able to afford retained counsel. In addition, graduate students and other researchers at Iowa State University provide another source of Clinical transactional cases, many of which include advanced issues involving tech transfers, capital structures, and software licensing. The Director will have the opportunity to build on the success of the existing clinic, which serves a vibrant, diverse community of innovators. In addition, there may be opportunities to teach doctrinal and experiential-learning courses depending on the law school’s curricular needs.

Candidates must possess a J.D. or comparable law degree and be admitted to, or able to satisfy the requirements for admission to the Iowa Bar. A distinguished record of clinical teaching or extensive practice-related experience, with a demonstrated capacity for excellence in teaching, supervision and assessment, scholarship, and service is preferred. At least three years of teaching and/or practice experience is also preferred.

Drake has long excelled in clinical education and is a pioneer in the area. Our six clinics provide students with an outstanding legal experience in Children’s Rights Law, Delinquency Law, Elder Law, General Civil Law, and Criminal Law. Housed in the state-of-the-art Neal and Bea Smith Law Center, the Legal Clinic is an integral part of the Law School Program and is supported by a multi-million dollar endowment. The Law School is located in Des Moines, the capital of Iowa, a thriving metropolitan area of more than 700,000 people. Des Moines is consistently ranked in national surveys as one of the best places to live in the United States.

Drake University is an equal opportunity employer and actively seeks applicants who reflect the diversity of the nation. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status. Diversity is one of Drake’s core values and applicants need to demonstrate an ability to work with individuals and groups of diverse socioeconomic, cultural, sexual orientation, disability, and/or ethnic backgrounds.

Confidential review of applications will begin in August 2018. Applications (including a letter of interest, a complete CV, teaching evaluations (if available) and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: [email protected].

Wednesday, August 29, 2018

Law Schools as a Proxy for Class

Above the Law recently published an article by LawProfBlawg—an anonymous professor at a Top 50 law school—called “Classism in Academia.” The article takes as a jumping off point the characteristics of law professors in the latest citation count rankings, and notes the low numbers of ranked professors “who didn’t go to a top 10 law school (and more likely to be from a lower socio-economic status).” This isn’t the first time I’ve seen someone endorse the idea that the law school a student attends is a good proxy for his or her class. So I thought I’d spend a few minutes explaining why I’m uncomfortable assuming that a law professor’s attendance at a Top 10 law school (as opposed to a lower ranked school) is a good proxy for class.

But before I get to that explanation, let me say that I think that schools should consider socioeconomic status when it comes to achieving diversity both for faculty and students. And I also think that it is a good idea for schools to hire from a broad array of different law schools. I’d be happy to defend either of those positions. But I don’t think that one has to believe either or both of those things to think that we shouldn’t use attendance at a Top 10 school as a proxy for class.

So what do we know about the socioeconomic status of people who attend top 10 law schools? I haven’t done independent research on the topic, so I can’t say with any authority. But what I can say is that the evidence offered in this article doesn’t support the proxy argument. That is because, to show that a professor’s alma mater is a good proxy for class, you’d have to show not only that folks who attend top 10 schools came from money, but also that those who attended schools ranked 11 or below didn’t. In addition to that, you’d have to show that there is a significant enough difference between the socioeconomic status of people at the top 10 schools and those at schools 11 or below that we can say school attendance is essentially interchangeable with class. And, from what I’ve seen, the limited data available doesn’t suggest that either of these things are true.

What appears to be the best data set about socioeconomic status in law schools (a data set that didn’t include family income) supports the idea that people who attend law school tend to have a higher socio-economic status than those who don’t. And the LawProfBlawg article points to it as support for its claim about law school as a proxy for class. I’m not in a position to assess the methodology or limitations of that study. But I can say that the study doesn’t show a significant difference between the top 10 law schools and the top 50 law schools. According to the table on page 9, 82% of students at top 10 law schools are in the top quartile of socioeconomic class, as compared to 77% at schools ranked 11-20, and 73% at schools ranked 21-50.

That comparison is important because it shows a serious weakness with the class proxy argument. The weakness is that a person who attended a school in the top 50 (but not top 10) ranked law schools is *very* likely to have come from a high socio-economic class—in fact, they are nearly as a likely as a student at a top-10 school to have come from money. So if we are going to assume that someone who went to a top-10 ranked school had a high socioeconomic status, why would we not assume that about someone who went to a school ranked 15? Or 35? Or 42?

I’ll admit that I feel somewhat defensive about this topic. But I want to be very clear about *why* I feel defensive. I feel defensive because the law school that I went to—although it is at the top of the US News rankings—wasn’t just filled with the children of the super-rich. (And there is a best-selling book out there right now that seems to say it is.) And there is some limited information out that that suggests my school—Yale Law School—doesn’t deserve the reputation that this proxy argument seems to assume. The current dean of the law school recently tweeted some statistics about the incoming class, including that 10% of the class are the first in their family to attend college and that more than a quarter are the first in their family to attend professional school. And another Yale grad helpfully tweeted some information about an older survey of YLS students reporting that the median family income was not significantly higher than the national median.

Not only does my law school not get the credit that it deserves, but the claim that school is a proxy for class also makes those of us who went to these schools but who didn’t have a lot of money feel kind of crappy. As this topic was being discussed on Twitter, I had a few friends reach out to me to tell me how upset they’ve been when people assume that, because they went to Harvard or Yale, that they must have grown up with a lot of money. They are upset because comments like this suggest to them that people assume that they didn’t have to work hard to get that degree. And it especially stings because they remember having to eat Ramen or turn down fancy unpaid internships because they didn’t have the money to do otherwise.

This defensiveness is much different than what LawProfBlawg mentions in his article. The article says:

I also find it a bit amusing that some who tout the need for student diversity often become exceptionally defensive when looking at their own privilege and the need for academic diversity. I’m not suggesting that those of you who are at elite law schools or who have elite law review placements don’t deserve kudos. It is simultaneously possible to accept that you have been benefitted by privilege based on your race, class, or gender and also continue to value your own writing and scholarship and continue to have it valued.

The working class kids who went to these schools didn’t have the benefit of class. And insisting that we should use alma mater as a proxy for class minimizes or even erases whatever hurdles they faced by not coming from money.

The proxy argument also exacerbates something that I’ve always found unsatisfying about the current discussion surrounding privilege—that it sometimes suggests that only some have truly “earned” their current success. I’m not sure that any of us can say that we didn’t benefit from something that was external to ourselves. For example, even though I didn’t grow up with money, I was extremely lucky to have two parents who greatly valued education, lucky to have a high school teacher who encouraged me to apply to Ivy League schools, lucky to have college friends who convinced me to apply to law school, lucky to have a first year law professor who encouraged me to transfer to Yale since I wanted to teach, and insanely lucky to have a partner who is more supportive and understanding than any other human being that I know. And if I constantly focus that the advantages that others have because they are male or because they grew up with money, it is easy for me to lose sight of all of the advantages that I did have. There are plenty of people who worked just as hard as I did and were just as smart, but who weren’t as lucky. And I don’t want to lose sight of the luck that I’ve had and start thinking that I have only myself to thank for whatever I've accomplished.

But perhaps that most troubling thing about the law school proxy argument is that it is trying to tap into innate feelings about fairness when what we need is a more careful and nuanced discussion about law school hiring. There is no dispute that it is easier for a candidate to get a law teaching job if she has gone to Harvard or Yale than if she’s gone to a school outside of the top 30. But it’s not entirely clear why it is easier. If we say that the difference between those candidates is about money, then we automatically assume that the system must be flawed. But if the socioeconomic status of students from a school ranked #1 and a school ranked #30 aren’t actually all that different, then we need to have a more difficult conversation about why that hiring difference is a problem. Is it because Harvard and Yale have better networks for their grads? Is it because they do a better job teaching their students about academic writing? Or is it some form of discrimination? It’s not enough to shout “hierarchy” or “elitism”—you need to have a more nuanced discussion.

I’m not saying that a nuanced argument against our current system can’t be made. In fact, I think it can. And since we are law professors, I think that we have a pretty serious obligation to have the nuanced discussion. We shouldn’t let our own preconceived notions about they “types” of students who graduate from these schools dominate.

Socioeconomic class is something that law schools should care about. But let’s please stop saying that only top 10 law schools have diversity problems when it comes to class. It simply isn’t true. And it prevents us from having a better discussion about the issue.

Guest Post: A Law Faculty Candidate and His Judicial Reference (1934)

In summer 1934, Harold Roland Shapiro was a young lawyer. It seems that he had earned his Bachelor of Laws degree eight years earlier at New York Law School, and that he had gone on to work in Washington, D.C., in a government position that had something to do with trade and antitrust law. [I have not been able to find many sources on Mr. Shapiro’s background—I welcome any pointers.]

It also seems that Shapiro was acquainted with U.S. Supreme Court Associate Justice Benjamin N. Cardozo.

We know this because Shapiro wrote to Justice Cardozo during the Court’s 1934 summer recess. Shapiro reported some good personal news: positive signs that he would be employed by his alma mater to teach Administrative Law. And Shapiro asked for Cardozo’s help—he requested a letter from the Justice to New York Law School’s dean, recommending Shapiro for the teaching position.

Cardozo declined to send the “Supreme Court justice letter” that surely would have been, if Shapiro had needed it, an employment-clincher. Instead, Cardozo, summering in Westchester County outside New York City, wrote back to Shapiro, explaining his policy of not volunteering recommendations:

Rye, N.Y.

August 12, 1934

Dear Mr. Shapiro,

I am much gratified

at the word that you are

likely to give instruction in

administrative law at the

New York Law School. You

have many qualifications

for the work and will

be happy in it.

As for writing to the

Dean, I have a fixed rule

never to recommend any one

for appointment to a

position of any kind unless

my opinion has been solicited

by the appointing power.

You will agree with me, when

you reflect about the matter,

that this is the only

appropriate attitude for a

judge to take.

With all good wishes and

kind regards

I am faithfully yours

Benjamin N. Cardozo

It’s not clear what happened next. Maybe Shapiro got the Dean to ask the Justice for his views and Cardozo then endorsed, or maybe Shapiro did not and his application went forward without it.

In any case, Shapiro got the job—he became an Assistant Professor at New York Law School (at least by 1938, which is the earliest press reference I can find, but I assume that it happened in Fall 1934).

This all seems extra-relevant to me because I am, like many law professors, on my school’s Appointments Committee this year and going through candidate resumes. Many are excellent. I wish every applicant the luck of Shapiro and each of us who gets to think, teach, and write as a law professor.

And I am reminded, by Justice Cardozo, that when an interesting candidate lists a great Judge as a reference and I might wish to hear his or her views, I should take the initiative to make contact.

And a final point, for history: For any collector, or any would-be benefactor of an appropriate archive, the Cardozo-to-Shapiro letter is available for purchase—click here if you have $1,500 to spend for it.

Tuesday, August 28, 2018

Dean Search: University of Utah S.J. Quinney College of Law

The University of Utah invites nominations and applications for the position of Dean of the S.J. Quinney College of Law.

The Dean will be a nationally recognized leader with demonstrated administrative skills and a discernible commitment to the values of the College of Law and its mission to educate, to advance the frontiers of knowledge, and to serve the public. As its chief administrative and academic officer, the Dean will foster inclusivity and diversity, promote collegiality and respectful engagement, meaningfully collaborate with others at the University and in the community, and possess an aptitude for development, donor and alumni relations, and the wise stewardship of resources. The Dean also must guide the College of Law in innovating approaches to the present challenges in legal education and in sustaining its reputation for institutional excellence.

The Dean will serve a five-year renewable term, commencing July 1, 2019. The successful candidate must have a J.D. degree. Rank and compensation will be commensurate with qualifications and experience; a scholarly record that supports an award of tenure and rank of full professor is preferred.

Founded in 1913, the College of Law is the only public law school in the State of Utah. The Dean will lead an exemplary group of 47 full-time faculty members, about 300 students, and a dedicated professional staff, all of whom contribute to the quality and vibrancy of the institution. Our faculty publishes works in leading journals, collaborates on prestigious interdisciplinary projects, writes impactful legal briefs and policy white papers, authors books of national and international interest, hosts cutting-edge conferences, and has a longstanding (and rising) reputation for scholarly excellence, community engagement, and inventive pedagogy. Overall, U.S. News & World Report ranks the College of Law nationally as a top 30 public law schools and a top 10 environmental program. The College of Law supports two centers of research excellence with national impact and significant student involvement. The Wallace Stegner Center for Land, Resources, and the Environment is dedicated to understanding our critical environmental challenges and promoting public knowledge and dialogue about sustainability. The Center for Law and Biomedical Sciences is committed to improving health law policy in the life sciences, biotechnology, bioethics, and the medical and technologic arts.

The College of Law currently has a student-to-faculty ratio of 6:1, which fosters unparalleled faculty mentoring and support for our students. Employers routinely laud our unique legal reading and writing program, a cornerstone of the first year curriculum. Our upper level courses enable our students to individualize their program to suit their future directions, and we offer six subject matter certificates and joint degree programs to that end. Outside of the classroom, our students experience learning through an extensive nationally recognized clinical program, recently ranked 15th in the country for Practical Training in 2018 by PreLaw magazine. For example, 90% of the class of 2016 participated in 14 clinics, with each student averaging over 300 hours of clinical work for credit. The College of Law also supports a remarkable, one-of-a-kind volunteer program that allows students to provide legal outreach to the local community. In 2016, our students contributed over 4000 volunteer hours and served almost 2000 clients in nine brief advice clinics. After graduation, we are proud to find our alumni pursuing distinguishing roles in every sector, in every area of law, and in every part of the country.

Building on these accomplishments, the College of Law recently opened a 155,000-square-foot state-of-the-art facility designed to enhance innovation in legal education, bolster community service, and provide students with new opportunities for skills training. Designated LEED platinum, the new building incorporates award-winning accessibility and sustainability features that embody the College of Law’s deep commitment to the environment and to the community.

As a flagship research institution in the elite Pac-12 Conference, the University of Utah enrolls approximately 26,000 undergraduate and 6,000 graduate students and ranks among the best global universities. Heralded for its entrepreneurial spirit, Forbes magazine ranked the state of Utah as the 3rd Best State For Business in 2018. Our campus is located in Salt Lake City, a progressive state capital and regional economic epicenter, which serves as a focal point of growth for a diverse metropolitan area of over one million people ranked as the 10th best city in the U.S. by U.S. News & World Report in 2017. The city is home to a wide variety of cultural activities, including the Utah Symphony and Opera, Ballet West, the brand new Eccles Theatre, a vibrant concert scene, and several professional sports teams, and offers unparalleled recreational opportunities, with ten world-class ski resorts and five national parks nearby. More information about the city and the region can be found at http://www.visitsaltlake.com.

Applications, including a curriculum vitae, a letter stating the candidate’s interest and qualifications, and five professional references, should be submitted to http://utah.peopleadmin.com/postings/79927. Confidential inquiries should be directed to the search committee co-chairs, Keith Diaz Moore, Professor and Dean of the College of Architecture + Planning, at [email protected], and Amelia Smith Rinehart, Professor of Law and Associate Dean for Faculty Research and Development, at [email protected]. The committee will review applications beginning October 5, 2018, until the position is filled.

The University of Utah is an Equal Opportunity, Affirmative Action employer and strongly encourages minorities, women, veterans, and persons with disabilities to apply. A veterans’ preference will be extended to qualified veterans. Reasonable disability accommodations will be provided with adequate notice. For more information, please refer to the University’s equal opportunity and nondiscriminatory employment policy: http://www.regulations.utah.edu/humanResources/5-106.html. Inquiries about University nondiscrimination and disability accommodation policies may be made to the University’s Title IX/ADA/Section 504 Coordinator by mail to Director, Office of Equal Opportunity and Affirmative Action, 201 S. Presidents Circle, Rm. 135, Salt Lake City, UT 84112 or by telephone to (801) 581-8365 (V/TDD).

More on the ACLU's conflicting principles

The internal disputes over the ACLU's First Amendment activities is back, this time over the National Office's amicus brief in the NRA lawsuit challenging New York's practice of pressuring insurance companies, banks, and other regulated businesses not to do business with the organization. This Slate story describes some of the internal conversations responding to Legal Director David Cole's explanation for writing the brief, including a memorandum in response by three people in the New York affiliate. That memo made three points--this is not a novel case or a straight-forward free-speech issue; the NRA has the resources to litigate and the ACLU should consider whether to spend its limited resources helping litigants with "enormous resources at their disposal" as opposed to less-resourced groups, such as Black Lives Matter; and representing the NRA has negative effects on the ACLU's representation with "important allies." Several people objected to the National Office's argument that New York's tactics could be used against groups such as BLM, rejecting the use of BLM as a "shield" to justify representing groups that are causing the very problems, such as gun violence, in the African-American communities that BLM is trying to address. The article closes by suggesting that such disputes may cause the ACLU to "soon abandon its adherence to formal neutrality—and adopt a vision of liberty that openly favors the oppressed over the oppressors."

Regardless of the merits of whether BLM might be targeted, it is beside the point in this brief. A more salient and ongoing example, which the brief included, is states targeting Planned Parenthood, which stands for some in the same position the NRA does for others.

As to the article's final point, that vision of First Amendment liberty is no vision at all. A Muslim should not have less religious liberty than a Christian, nor should government be able to disadvantage powerful organizations but not powerless organizations in retaliation for their speech. And an organization committed to civil liberty should not approach liberty questions that way.

The resources argument (putting aside whether it has any merit) strikes me as inaposite in this case. The ACLU is not representing the NRA in this case, so any expenditure of ACLU resources does not relieve the NRA of the burden to spend money on its own lawyers to make its own arguments. The benefit of the ACLU's brief, on which it did expend some of its limited resources, is to the NRA's legal position, not to its wallet. An argument that the ACLU not only should not represent well-resourced parties* but should not provide amicus support for well-resourced parties seems over-inclusive, tying the merits of a party's constitutional position to the money in its bank account.

[*] This argument remains strange for another reason--representation makes the ACLU eligible to recover attorney's fees if it prevails. So it should recover at least some of the resources.

Sunday, August 26, 2018

A Guide for the Perplexed - Law Professor Careers Edition

With sincere apologies to Maimonides, and having been a guest blogger through this year's fall article submission season, it seems like an opportune time for a short update to those classics, Memo to Lawyers: How Not to "Retire and Teach" and "Retire and Teach" Six Years On. I wrote the former piece after getting a tenure-track law teaching job at the ripe old age of 52, reflecting on the idiosyncrasies of the hiring process, particularly for the superannuated aspirant, after having experienced the real world for most of a career. I wrote the latter piece shortly after I got tenure, reflecting mostly on what it really meant to do scholarship and teaching well.

I now have the further experience of having participated on various career-related committees and the faculty meetings in which hiring and other career decisions get made. (Disclaimer: what follows are my views alone and do not represent views of my employer, any committee on which I sit, or any other member of our faculty.) So, below the break, and for what it's worth, here are some random and personal thoughts about the role of scholarship in academic law careers and careerism, particularly for pre-tenured folks, from my particular perch at a respectable but certainly not an "elite" school.

Why are you writing? Presumably it's because you like doing it and see it as a way of making a difference in the world. But from a career advancement standpoint, you do it for one of three reasons: to get hired, to get tenure, or to move laterally. What I'm about to say is based on intuitions about data because the data is not readily available. The first and the last of those career objectives are difficult; the middle one, at all but a handful of institutions, is relatively easy. My suspicion is that the lateral market is far less important as a factor in career advancement than it might otherwise seem - again the availability heuristic at work. The AALS reports that there are over 10,000 full-time tenured or tenure-track law professors (makes sense - about 200 schools at an average of 50 faculty members). Maybe there are 100 lateral moves a year? A very well-known senior law professor/scholar told me years ago not to expect to move laterally - this person had spent 17 years at a lower top 100 school before making a series of significant jumps up the food chain. My intuition (which I could test if I didn't think it was undue navel-gazing) is that the farther you go down the rankings, the higher the percentage of faculty that have spent their entire career at the school.

CVs provide a gestalt. My own experience is that I take it in as a whole and don't react to any particular item unless there is something truly exceptional about it. For my money, the angst and mental energy I see reflected on this blog with respect to article placement is barely worth the effort. The names of law reviews in which you've published are visceral heuristics that, in my experience, matter only when one is flipping through hundreds of FAR submissions. Even then, it matters only to an extent and not at the level of granularity that people seem to think makes a difference. Per the lumping of peer reputation scores I've highlighted before, if you've published in the elites it would cause me to notice, and it would probably cause me to notice if you published nowhere but specialty journals in the unranked USNWR category of law schools, but little else matters viscerally. I don't keep a US News or Washington & Lee ranking in my head, and couldn't tell you where Tulane ranks in relation to Colorado to Temple. And even noticing isn't the same thing as making an informed judgment that involves the subject matter of the writing, the apparent sophistication of the work (if one can tell from the title), or its originality, even if I make the judgment quickly.

Once you get past the visceral, here's what I think really happens. As Paul Caron wrote in an article over ten years ago, legal scholarship has an exceedingly long tail. Paul relied on research done by Tom Smith at San Diego. The top half percent of articles get 18% of all citations, the top 5.2% get 50% of all citations, and the tail gets truncated quickly as 40% of all articles never get cited. I'm assuming that there is a relationship between citation and articles even getting read. The times you can be sure some or all of your work will be read is when you've made it through the callbacks and are into the final several people being considered for the spot, when you are being reviewed for promotion or tenure, and if and when you were ever in the final stages of the lateral process. Generally speaking, people doing that reading aren't idiots, and know exactly how the system works. If the piece sucks, but somehow you managed to get it through the editorial board at take-your-pick top 50 flagship, very few people who know the area in which you are writing are going to think to themselves, "Hmm, this person missed the really important work on this subject and skated over the hardest responses to the argument, but my gosh it was placed in the Big Ten Other Than Michigan Law Review, so it must be good."

While being perceived as a competent scholar is a but-for in the hiring, tenuring, and lateraling milieus, the make-or-break consideration is being perceived as a productive scholar. If there is anything I find meaningful in visceral impressions, again it is the gestalt of a CV with a healthy list of publications the dates of which show consistency, all appropriately adjusted for the length of one's career.

In creating the gestalt, aim for one traditional law review behemoth a year.But don’t overlook short pieces - reactions, brief essays, and so on.The online supplements are nice for this, as are the "essay" sections of traditional law reviews.You read a piece and have 3,000 to 5,000 words (or fewer) to say about it.Do it!

With the shorter pieces, take a shot at a peer reviewed journal. I really like the courage it shows. (Most peer reviewed journals have a word limit - usually no more than 10,000.). It takes longer to place them, but it really is a professional affirmation. And since it's likely that they don't count as "tenure pieces" under many schools' tenure standards, the wait doesn't matter so much. Steel yourself, however, for what academics in other disciplines experience: evil reviewer #2 who hates your piece, your school, and you, "revise and resubmit," and Chicago Manual of Style footnotes.

My thoughts on the substance of what gets written and the relationship of that substance to career advancement - issues of cross-disciplinarity, normativity, conformity, etc. - are at pages 71-80 of Retire and Teach: Six Years On, and I won't repeat them here.

Network in your area.If you read somebody’s article and like it, send the person a note with this in the subject line “Loved your piece....”.Be a commenter on others’ work.

Blog.PrawfsBlawg was founded as a forum for new (i.e. “raw”) professors. Again, it’s a two-edged sword.If your stuff is good, it helps.If not, it doesn’t.When I was unsure of a blog post, I would send it to a friend first.

Finally, a pet peeve. When you submit, you certainly can play the expedite game, but my personal view is that it’s inappropriate to submit to law reviews for which you would not accept an offer if it were the only one you got. If somebody at my school were to tell me they were doing that, I would probably raise my eyebrows and look askance.

Saturday, August 25, 2018

Faculty Hiring: Drake University

DRAKE UNIVERSITY LAW SCHOOL invites applications for a tenured/tenure-track position as Assistant/Associate/Professor of Law in the field of Agricultural Law and Director of the Drake Agricultural Law Center beginning in the fall of 2019. Applicants must hold a J.D. degree (or the equivalent) and should have outstanding records of accomplishment in scholarship, teaching, and service as well as substantial practice experience.

The successful candidate will teach agricultural law courses and serve as the Director of the Drake Agricultural Law Center. Drake was the first American law school to offer a J.D. specialization in agricultural law, offering courses not only on agricultural and food law but also on agriculture’s effect on social, economic, and political systems.

The student-published Drake Journal of Agricultural Law has been a leading legal journal focused solely on these issues for more than 20 years.

Founded in 1983, the Agricultural Law Center provides opportunities for students to explore how the legal system impacts the global food system and the agricultural sector's ability to produce, market, and use agricultural products. Drake’s location in central Iowa places it at the heart of a state that leads in production of soybeans, corn, eggs, and pork.

Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation’s diversity. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status.

Confidential review of applications will begin in August 2018. Applications (including a letter of interest, a complete CV, teaching evaluations (if available) and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: [email protected]

Friday, August 24, 2018

Who Doesn't Love a Book Festival? This Saturday in Southern California

Book Festival - each word a primary love, put together - fireworks! Music, art, kids corner, food vendors, beer and lots and lots of books and book talks. Tomorrow is the annual San Diego Festival of Books in Beautiful Point Loma with back-t0-back panels about books, fiction and non-fiction, writing and publishing, and ideas. There is also an amazing author lineup. It's free and open to the public and yours truly is on a panel on "the Dark Side of Business" [and the dark side of Barbie! as well as a new book about Trump/Russia and a book about Gambling Laws and Government Corruption] at 1030. If you are around - it's free and open to the public. Come with your whole family, bring your friends and come say hi!

University of Alabama School of Law Clinical Faculty Hiring Announcement

The University of Alabama School of Law is seeking candidates for the position of Assistant Professor of Clinical Legal Instruction and Director of the Criminal Defense Clinic. The official announcement is below:

The University of Alabama School of Law seeks applicants for a Clinical Director and Assistant Professor of Clinical Legal Instruction. The successful applicant will serve as the Director for the Criminal Defense Clinic. The Director will oversee and/or conduct all phases of legal advocacy for clinic clients, teach and supervise clinic students, and manage law clinic staff. The Clinic will offer students the opportunity to acquire skills important to their professional development while representing individuals accused of criminal offenses and/or infractions in Alabama State and/or Municipal Courts. The position is for a non-tenure-earning clinical faculty appointment that has the opportunity for promotion and security of position.

MINIMUM QUALIFICATIONS: a J.D. degree from an ABA accredited law school, a distinguished academic record, and experience as a clinical teacher or practicing lawyer. Candidates must be licensed to practice law in Alabama or become licensed no later than one year after accepting the position. We seek applications from entry-level and lateral candidates with demonstrated potential for outstanding legal practice, clinical education, and scholarly achievement. Salary will be commensurate with experience. Apply online at http://facultyjobs.ua.edu/postings/43351. The position will remain open until filled. Please refer questions about the hiring process to Professor Jenny Carroll, Chair of the Clinical Appointments Committee ([email protected]).

The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases.

Thursday, August 23, 2018

Law School Hiring Spreadsheet and Clearinghouse for Questions, 2018-2019

In a radical departure from past practice, this year the Hiring Spreadsheet post and the Clearinghouse for Questions post will live together in one post (quel scandale! cats and dogs! etc.). This very post, to be specific. (Last year, there were zero comments on the Hiring Thread post, because everyone just put the information in the spreadsheet. So I figured, let's combine them in one action-packed post! Spreadsheet and comments! Woohoo!)

I. The Spreadsheet

In the spreadsheet, you can enter information regarding whether you have received

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b) a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.

Anyone can edit the spreadsheet; I will not be editing it or otherwise monitoring it. It is available here:

II. The Comment Thread

In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.

Update: Comments have been changed to appear in order of newest to oldest. So the most recent comments are on the first page.

Update, 1/15/19: Some people have requested a "soft open" for the placement information. If you would like information to be added to the spreadsheet, please send me the information or post it in the comments below, and I will add it to the spreadsheet (which I will post once I have a few entries). You cannot add the information yourself. I will publicize this spreadsheet in early March, as I usually do.

Wednesday, August 22, 2018

CFP: National Conference of Constitutional Law Scholars 2019

THE REHNQUIST CENTER is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 9-10, 2019. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by October 1, 2018. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by November 1, 2018. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar. The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches. There is a conference registration fee of $50, which will increase to $75 after February 28, 2019. Registration fees will be waived for conference presenters and for students and faculty at UA Law. In addition, a limited number of scholarships are available to those unable to attend the event otherwise.

Big Little Lies--Crim Law Question

My wife and I just finished Season One of Big Little Lies. We enjoyed the show. But we were not fans of how it ended, specifically how the police resolved the investigation and why, why the women told the story they did, and what criminal law has to say about it.

SPOILERS after the jump. Substantive crim law people, please help us out.

Assuming what was shown on the screen is accurate, here is what happened:

Perry, Celeste's abusive husband, begins attacking and beating her on the patio, in front of a stairwell that has caution tape across it. Celeste's three friends try to pull him off and he beats them off. Celeste is on the ground and Perry stands over her and kicks her multiple times. The other three women are helpless to stop the attack, which appears that it could continue and result in serious injuries. A fifth woman, Bonnie, runs from the far end of the patio towards Perry and shoves him with two hands towards the open stairwell; he breaks through the tape and falls down the steps, dying in the fall.

The woman all agree to tell the story that as Perry was kicking her, he fell backwards through the tape and down the stairs. One detective dismisses that as bullshit, because the women's stories and language line up too perfectly. Her partner asks why they would lie. He suggests that this clearly was self-defense, that the pusher (the police do not know who that was, although the partner assumes it was Celeste) would be guilty of at most involuntary manslaughter, and would get at most a year of community service, likely cut in half. (Put aside that community service does not work that way).

Here are my questions:

• Is that right under the law? What we see on-screen looks like defense-of-others and was a two-hand shove to stop a large man from severely beating a smaller and prone woman. It was a tame physical act, calculated to try to stop the ongoing assault. Does his falling down the stairs, in a defense-of-other situation, turn that into a crime? Would any prosecutor charge that, in these circumstances?

• If it is a crime, then having the police be confused over the women lying is stupid. They are lying because the truth would result in someone being convicted of a violent felony for coming to an abused woman's aide. Even if her sentence is relatively light, it is still a conviction for a violent crime and still a felony with all the collateral consequences that follow. Given the choice between the truth and a conviction or a lie that cannot be proven otherwise, of course they will choose the lie.

• Perhaps the story is trying to set-up the impossible situation for abused women, that attempting to fight back costs more. And perhaps that will be the theme of Season Two. But I did not see the groundwork laid for that.

Consumers in general, and poor consumers in particular, often make counter-productive financial decisions that undermine their welfare. One key example is that poor people frequently use high-cost credit and loans with onerous interest rates. They are also disproportionately engaged in other types of sub-optimal borrowing, such as rent-to-own transactions and insufficient savings for the future. Although lenders and service providers are obliged to disclose interest rates and other key information in a clear and conspicuous way, disclosures have been at best only partly effective to prevent exploitation and protect consumers. This chapter seeks to examine how consumer law can, and at times should, respond to this reality. While focusing on borrowing practices, we begin by pointing to the main behavioral patterns that impact financial decision making. We first address biases that are relevant to all consumers: over-optimism, the present bias, and the behavioral economics of information. We then discuss the psychology of poverty and scarcity, which demonstrates that the state of poverty depletes cognitive resources and undermines the consumer’s capacity to overcome temptations, choose the uneasy paths and exercise long-term planning. Against this background, we discuss a variety of policy recommendations. We focus on protections that are better-suited to treat the root causes that lead poor people to make dubious financial decisions. We conclude by succinctly noting some of the challenges entailed in our recommendations and discussing ways to expand our proposed framework.

Tuesday, August 21, 2018

Hiring: Florida State University College of Law

FLORIDA STATE UNIVERSITY COLLEGE OF LAW (FSU) has several openings for full-time tenured or tenure-track positions. Senior faculty candidates may be eligible for a named professorship. We are especially interested in individuals whose scholarship focuses on health care, commercial law, law and economics, and international law but invite applications from scholars in all fields. Candidates must demonstrate distinction or promise in both legal scholarship and law teaching. If interested, please send a Curriculum Vitae to Professor Wayne Logan, Appointments Committee Chair, Florida State University College of Law, Tallahassee, FL 32306-1601 (email: [email protected]). FSU is an Equal Opportunity/ Access/Affirmative Action/Pro Disabled & Veteran Employer; FSU's Equal Opportunity Statement can be viewed at:http://www.hr.fsu.edu/PDF/Publications/diversity/EEO_Statement.pdf.

Flipping constituional litigation

Here is a move that could shake-up our expectations in constitutional litigation. A group of Kentucky filed suit in the District of the District of Columbia, challenging HHS' grant of a waiver for Kentucky to change its Medicaid program; Kentucky intervened in that action as a defendant. At the same time, Kentucky sued the D.C. plaintiffs for a declaratory judgment of the validity of the state's new Medicaid rules. The district court dismissed on standing grounds, concluding that Kentucky had not shown an injury and that any injury arose from the result in the D.C. litigation, not from any conduct of the defendants. The court did not resolve defendants' 12(b)(6) and first-to-file arguments.

This is an aggressive move, allowing a state to preempt constitutional litigation by rights-holders by running to a preferred court either before or during the rights-holders' litigation. At the very least, it forces rights-holders into a two-front war. On this logic, nothing would stop a state from the following: Prosecution of X for violating a law, with X arguing in the prosecution that the law is invalid. State runs to a different court against X, seeking a declaration that the law is constitutionally valid.

Perhaps the benefit of resolving this case on standing, rather than something discretionary such as first-to-file, is to signal that states lack standing to sue over an anticipated injury caused by someone else's lawsuit.

Monday, August 20, 2018

First Mondays on First Year

With SCOTUS quiet, the folks at First Mondays devote an episode to 1L year. Topics include reading cases and prepping for class, study groups, study guides, different approaches to statutory courses, and studying for and taking exams. It is a great discussion and worth sharing with the 1Ls in your life.

Sunday, August 19, 2018

Amicus with Dahlia Lithwick on the Dark Side of Innovation Wars (and Barbie too!)

I had the honor and pleasure sitting down with Dahlia Lithwick to chat about my book You Don't Own Me and the future of intellectual property and innovation - it was fun and an honor - you can listen to it here on Slate's Amicus.

Friday, August 17, 2018

And They Are Back!

It is official. The 1Ls are in the building. Looking nervous; excited; ready for battle?!?!

Yesterday, I was part of our professor panel for 1L orientation. As people were discussing the difficulties of law school, I remembered something a friend of mine told me while she was the vice-principal of a middle school. She explained to me that when a student is really learning, they are often uncomfortable. Growth is challenging and often causes some discomfort, but it is important to lean into the experience. Discomfort isn’t necessarily something to avoid, because it can be the beginning of an extraordinarily rewarding experience.

That sentiment, while particularly relevant to students, is just as important, I think, for scholars. There are easy projects, and there are hard projects. There are a number of reasons to do both, but I must say the ones I have found the most rewarding were the projects that had me waking up in the middle of the night trying to figure out a piece of the puzzle. I tend to work on a few projects at a time, which allows me to remain “productive,” while I really mull over the hard stuff. The hard projects can (and have and will) take years, but when you finally figure it out, boy is it worth the effort.

Here is to a year full of fun, learning, discomfort, and growth for all involved!

Thursday, August 16, 2018

Number of FAR Forms in First Distribution Over Time - 2018

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

(All information obtained from various blog posts, blog comments, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

Masterpiece Cakeshop redux

Jack Phillips of Masterpiece Cakeshop has filed a federal civil action against the members of the Colorado Civil Rights Commission, challenging the constitutionality of a new threatened enforcement of the state's public-accommodations law. This case arises from his refusal to sell a cake with a blue exterior and pink interior to a lawyer (clearly doing this as a test case) celebrating her birthday and her male-to-female transition. The lawyer complained to the Civil Rights Commission; the Director of the Commission found probable cause to believe a violation occurred (sex and transgender status) and order edthe parties to mediation, but Phillips instead filed suit. Some thoughts after the jump.

• The parade-of-horribles comparison I thought of was a person requesting a cake that was white on the inside and black on the outside to celebrate his biracial identity or the biracial identity of his child, which conflicted with a baker's belief that "the fact that God separated the races shows that he did not intend for the races to mix."

• There is language in the Complaint about Colorado ignoring SCOTUS's decision in Masterpiece. But here is where judicial departmentalism kicks in. The judgment in Masterpiece (if there was one--the Court was cryptic about this) was that the Commission's sanction for refusing to bake the wedding cake violated the First Amendment. At best, that should have meant a reversal of the injunction the Commission entered against Phillips for refusing to bake that cake. That judgment does not preclude the Commission from pursuing a new case based on a new refusal to bake a different cake with a different message for a different customer. A government entity does not violate the judgment in a prior case by attempting to enforce the law against the same person on a new set of facts arising from a new transaction or occurrence.

As for the precedent of Masterpiece, I do not believe control the Commission' s actions, other than to the extent it does not want to lose in a court that is bound. Even than, that precedent does not squarely answer this case. The problem in the previous case was the purportedly anti-religious remarks by Commission members, which may not be present here; a majority of the Court did not hold that a baker enjoys a First Amendment opt-out from public accommodations laws.

• There is a Younger problem here. A government-initiated administrative enforcement action is an ongoing proceeding that triggers abstention. The question is whether a finding of probable cause commences that proceeding. It triggers a statutory conciliation process, including compulsory mediation, leading to an adversary proceeding if unsuccessful. It may depend on what the court defines as the proceeding--the conciliation element or the entire thing. In any event, the Complaint recognizes this, including allegations of bad faith by the Director in finding probable cause and a "rigged" process, given the make-up of the Commission. These seem designed to move the case into the Younger exceptions for bad faith or unusual circumstances, such as biased decisionmakers.

On the bad-faith point, this presents an additional way that judicial departmentalism pushes towards judicial supremacy. Bad faith for Younger purposes is defined as a prosecution undertaken without hope or expectation of securing a valid conviction. If a government official initiates an action to enforce a law in the face of SCOTUS precedent declaring that law constitutionally invalid, he has no realistic hope of securing a conviction--he knows he will lose the prosecution. So an attempt to pursue that prosecution, while consistent with his oath, may mean the target of the prosecution could seek to enjoin the prosecution even though pending and argue the bad-faith exception. I had not considered that possibility.

More Angsting about Angsting

So ... I entered a piece in the law review submission free-for-all. It has caused me to reflect further on this system that generally causes academic jaws to drop in every other discipline when you describe it. Being at this stage of my career (see Further Reflections on the End of Ambition) where placements tend to be a matter of bucket list check-off and pure ego, my heart really does go out to those whose angst is related to getting or retaining a job. I thought "ctr" (the Appointments Chair at a T50 school) offered some wise counsel in the comments, consistent with the data, about not getting too hung up on the relative rankings of the schools in which you place your pieces.

I do not discount the angst. I recently went through the five stages of law review submission grief.

Denial: [Imagine thought balloon if this were a cartoon] "Oh wow, I've been called now by the fourth different Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty to do a peer review of a submission. I must be thought of as having scholarly chops well above the station otherwise indicated by the faculty letterhead on which I am obliged to submit my own work."

Bargaining: "Dear Senior Articles Editor for Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty: I was flattered when you asked me several months ago to be an unpaid peer reviewer for the article submitted by [deleted] and was happy to turn around thoughtful comments in fewer than 24 hours because you were on an expedite deadline. I did point out at the time the irony of your calling me for a review when all of my submissions to your journal have been rejected within hours, if not minutes, of their submission. Nevertheless, I did do it for you in the appointed time. As you may recall, you commented on my comments as 'fascinating,' 'insightful,' and 'extremely helpful to our board's consideration.' I now have a new piece ready for submission, and am willing to give it to you for an exclusive review for two weeks."

Depression: "Dear Professor: Thank you for submitting your article to the Very Highly Ranked Flagship Law Review. Even though I found it fascinating and insightful, I am afraid that we will not be able to consider it for inclusion. We wish you the best of luck in your placement of the article. We hope, however, that you consider the Very Highly Ranked Flagship Law Review for future submissions."

Anger: "Ungrateful little shits."

Acceptance: American Samoa Journal of Bible Studies and Blockchain Technology.

Wednesday, August 15, 2018

Hiring: University of Utah: Professor and Director of Clinical Programs

The University of Utah S.J. Quinney College of Law is seeking a visionary leader to serve as Professor and Director of Clinical Programs beginning in the academic year 2019-2020. This individual will join the College as a full-time tenure-line or career-line faculty member. Rank and compensation will be commensurate with qualifications and experience. Tenure-line candidates would be expected to satisfy the same standards for research, teaching, and service as other tenure-line faculty members. Relevant qualifications may include a record of success or potential as a clinical director, clinical instructor, or law professor, excellence in academics or practice, or strong scholarly distinction or promise in any relevant field.

In addition to fulfilling the responsibilities of a faculty member, the Director of Clinical Programs will be responsible for supervising and developing the structure and support for our clinical programs. In recent years, the College has been ranked second nationally in offering clinical opportunities per student (2014), sixth in public service (2016), and fifteenth in practical training (2018). By drawing on in-house clinics, clinical courses, and an extensive program of field placements, we offer clinical opportunities in an exceptionally wide range of practice areas. Over 90% of our students participate in our clinical programs, and we significantly exceed the national averages of clinical and pro bono service hours per student. The Director will lead our Clinical Programs into the next era of legal education and training. The Director will engage with the administration and faculty in strategic planning, including the pursuit of innovations in the structure and content of our clinical programs. The Director will be responsible for teaching experiential courses, mentoring other faculty assigned to teach experiential courses, overseeing staff, advising students, and promoting the College’s clinical and pro bono service programs on a local, national, and international level.

The University of Utah is an Equal Opportunity/Affirmative Action employer and educator. Minorities, women, veterans, and those with disabilities are strongly encouraged to apply. Veterans’ preference is extended to qualified veterans. Reasonable disability accommodations will be provided with adequate notice. For additional information about the University’s commitment to equal opportunity and access see: http://www.utah.edu/nondiscrimination/. Applications must be submitted to: http://utah.peopleadmin.com/postings/79919.

Tuesday, August 14, 2018

An interesting pedagogical observation

I have an an opportunity for an interesting pedagogical experiment this semester. My 15-person Fed Courts class has 4 men and 11 women, an unusual imbalance even for a school like FIU that has more women than men. I am curious to see whether men nevertheless dominate the conversation. The four men seemed quicker to volunteer during the first class. It will be interesting to see how it plays out over the semester. I also must be conscious of waiting for hands to go up and ensuring some balance between raw numbers and hesitancy. There are panels in the class, so that will mix things up somewhat. Still, it will be interesting to watch a strange balance play out.

Monday, August 13, 2018

Notre Dame Law School hiring a Director of Trial Advocacy Program

Submission Angsting and the Availability Heuristic

I have not participated in the bi-annual feeding frenzy known as the student-edited law review submission season in several years. I may this year, plus I'm blogging, so it's hard not to read the comments on "submission angsting" post (NB: autocorrect kept changing it to "submission ingesting" which I think is clever.)

This is a curmudgeonly but data-based contribution in aid of the reduction of angst. I vaguely recall posting something like this eleven or twelve years ago, no doubt when many young law professors or aspiring law professors were still in high school. I direct it to those of you readers angsting significantly between, say, placements in law reviews at school ranked 65 versus school ranked 75. Or some such similar consideration.

Paul Caron over at Tax Prof Blog does us the community service every year of re-ranking the schools by their "peer assessment" number, which ranges from 1.1 at the low end to 4.8 at the top. I am assuming for this exercise that the peer assessment is meaningful even though I have my doubts.

My doubts stem largely from the likelihood that so much of this is determined by the availability heuristic, the term coined by Tversky and Kahneman for a mental strategy in which people make judgments about probability, frequency, or extremity based on the ease with which and the amount of information that can be brought to mind. Hence, we bias our judgments based on available information.

Having said that, here goes. One of the most available pieces of information is the linear ranking in US News. It's really available. It's available to the people who send in their votes for peer ranking and it's available to authors trying to place their articles. What is not so available (thank you Paul) because you have to pay to get it isn't just the re-ranking by peer assessment but the actual peer score.

The histogram above shows the peer assessment scores from the 2019 US News law school ranking by the number of schools at each peer score from 1.1 to 4.8. You can draw your own conclusions, but I think trying to thin-slice differences between scores close to each other is kind of silly. It's pretty clear that whatever peer assessment means, the top 17 are in their own world. As between 18 and 50, yeah, maybe there's difference between 18 and 50, but I wouldn't get too worked about about the difference between 30 and 40. That effect is even more dramatic in the 50-100 range. The point is that the rankings are linear, but the actual data sits on a curve. So the differences between linear rankings mean different things at different levels. (I'm pretty sure re-grouping the data in other significant categories like entering LSAT score would yield similar results.)

It's why I find it, what?, sad? odd? unthoughtful? when schools get lauded or dinged for moving eight or ten places one way or another between about 50 and 125. Yes, the data are meaningful when you jump from 105 to 18 or vice versa. But not when you "sank" from 50 to 62.

Okay, that's it. Back to our regularly scheduled blogging.

UPDATE: I'm going to close the comments here. If this merits any discussion, it probably ought to occur at the angsting post.

Sunday, August 12, 2018

Every snowflake is different

How is this complaint about NFL player protests from the head of the Broward County PBA different from the complaints from liberals (on- and off-campus) who are derided as "snowflakes" for objecting to Richard Spencer, Milo Yiannapoulos, Chick Fil-A, et al. The PBA is calling on members to boycott and not do business with the team. It is demanding that the Dolphins no-platform the players, calling on an entity to deny a speaker the opportunity to present his message. And the complaint is that the speaker's message is a "slap in the face" to the complainer, who is offended by the speech. There is no practical difference between the two situations.

Further Reflections on the End of Ambition

Almost exactly three years ago, on the last day of my guest-blogging month, I posted a piece entitled The End of Ambition. Sometimes I go back to what I wrote long ago and cringe (I was tempted to link the piece that most makes me cringe, but nah) but this one I like. It started as a contemplation of what it's like to face the end of your career and turned into a broader assessment of what it means to grow up, to be an adult (something we've recently explored in connection with law students).

Well, here we go again, except now I'm 1000000 (Aside #1: as my friend Raffael Cavallaro said, "there are 10 kinds of people in the world, those who understand binary and those who don't") and looking pretty good for 1000000. (Aside #2: if horses ruled the world, "digital" really would mean "binary".) But when you hit 1000001, you hit the normal age for filing for Social Security, and at 10000110 you have maxed out on the value of deferring your benefits. (For those of you who have many years yet before this becomes an issue, it involves the uncomfortable evaluation of how long past 10000110 you and/or your surviving partner think you will make it. The longer the period, the more sense it makes to defer.)

What prompted the re-reflection is being on this blog extensively at the same time the "submission angsting" and "hiring committee" posts have gone up, and my recent pontifications (sparked by Kaci Bishop's article) on fear and failure. What I want to do here, from the perspective of one who has achieve the ripe old age of 10 to the 110th power, is link fear and failure to ambition. My thesis here is that there is a continuum of ambition from the macro to the micro, and our brains don't do a great job of making that clear, hence causing our nervous system to spit out fear of failure juice in many of the wrong places.

Here are prototypes of macro ambition: getting hired as a tenure-track law professor or being awarded tenure. Placing law review articles have a lot to do with both (so it seems). I do very much understand macro-ambition. My school and professional lives were a continuous series of them - grades, class standing, university admissions, law school admissions, getting a law firm job, making partner, getting the in-house job, becoming the GC. I've said this before - when you attempt to break into academia and then climb the tenure ladder as a superannuated newbie, the actual consequence of failure is, I think, less significant in one's life than if you start out young. I think there is also a lower fear factor - and thus more willingness to swing for the fences. (By the way, it's been around for well over a decade now, but you can find that particular story in Memo to Lawyers: How Not to "Retire and Teach".)

Here is my prototype of the micro-est of micro ambitions. When you get to be 1000000 and you worry about the increasing number of senior moments, you do things to assure yourself that you aren't losing it. One of mine is doing the New York Times crossword puzzle every day. Monday and Tuesday are too easy, so I do them online and see how fast I can complete them. Wednesday through Sunday merit printing them. I do them in ink and my goal is not to make a mistake. I can annoy my wife no end by finishing the Saturday or Sunday puzzle perfectly and then proudly displaying it as though it is actually some kind of meaningful accomplishment.

Now some people never stop having and acting upon macro-ambitions. Joe Biden is thinking about running for President, I'm pretty sure. I am in the process of coming to terms with the end of mine. (Trust me, I had them and could tell you stories.) What I'm thinking now is that there isn't really an end of ambition. It's just that most of the macros get taken over by the micros. Not going to be a CEO. Not going to be a university president. Not even going to be a lateral hire. It's now a bucket list. Yeah, it would be cool to place an article in the Yale Law Journal. It won't make a helluva big difference to anything, but it would be another thing to check off, somewhere between doing the Saturday puzzle completely correct in ink and being President.

The thing is the fear. I've already admitted publicly that I have the typical type-A failure dreams. I'm not sure which is the chicken and which is the egg - ambitious goals or fear of failure - or if maybe they are the same thing. But it has made me think about Woody Allen's observation on this in Annie Hall: "You know, a guy walks into a psychiatrist's office and says, hey doc, my brother's crazy! He thinks he's a chicken. Then the doc says, why don't you turn him in? Then the guy says, I would but I need the eggs."

Woody was talking about relationships, but I'm talking about fear of failure. I still get slightly (not pathologically) annoyed at myself for screwing up the crossword. If you lose the fear, do you also lose the ability to achieve whatever it is you want to achieve?

UPDATE: I corrected my age from the original posting (h/t Dean Andy Perlman). I am 1000000, not 100000. When you get to 1000000, it's hard to see all those zeroes. Another damn failure! There goes the brain again, releasing those fear of failure juices.

Saturday, August 11, 2018

Flag protests and public employees

The assumption among supporters of protesting NFL players and critics of the NFL is that the league is trampling on the players' free-speech rights, that the players have a free-speech right to protest the anthem, save for the absence of state action. But the assumption is that if there were state action, the First Amendment would protect the players. Let's push on that question, with a hypothetical to which I genuinely do not know the answer:

The head of a government agency or office (it does not matter what level of government or what office) has decreed that the workday shall begin every day at 8:30 a.m. by everyone in the office standing before the flag with hands over hearts, recite the Pledge of Allegiance, and sing America, the Beautiful. The director explains that this symbolic reaffirmation of America reminds public officers of their obligations to the Constitution and to the public they serve in performing their jobs. Must an objecting employer, who believes that America's criminal-justice policies are discriminatory, participate in this ritual?

There are several doctrinal paths competing for attention here.

1) Barnette says students cannot be made to participate in the flag salute. By extension, it should mean other people cannot be compelled to participate in other patriotic rituals. Certainly Jackson's rhetoric speaks of patriotic rituals, not only the Pledge in schools. There also is a nice question of how far the Barnette protection extends--to speaking the words of the Pledge or anthem or to all engagement in the ritual. In other words, does Barnette mean you can opt-out entirely by kneeling or sitting or leaving the room? Or does it only mean you cannot be compelled to utter the word, but can be made to stand there, even at attention?

2) Employee speech rights within the workplace are limited, under the Garcetti/Connick/Pickering line of cases. Workplace speech that is part of the job is per se unprotected, while Connick/Pickering ask whether speech (whether in or out of the workplace) is on a matter of public concern and whether the employer's interests outweigh the employee's expressive interests. But on-the-job core political speech, however offensive, that does not affect government operations is protected. Thus a deputy sheriff could not be fired for stating, in a conversation with co-workers, her hope that a second assassination attempt on President Reagan would succeed.

3) Janus can be read to accord public employees greater protection against compelled speech than they enjoy against restrictions on their own speech, a criticism Justice Kagan leveled in her dissent. Kagan also predicted that Janus was about limiting public unions, not compelled speech generally, so a rule compelling employees to speak in a way other than donating money to a union.

So what might be the answer to my hypo? There are a couple of threshold question. First is how we should understand what the protesting employee (or an NFL player) is doing. Is he seeking to opt out of having to utter the government's message? Or is he trying to make his own affirmative statement about something (e.g., police violence)? This makes a difference between whether we are in Barnette/Janus or Garcetti/Pickering. Second is how much deference the court owes the government in defining what speech is part of the job. So will the court buy the government argument that the pre-opening patriotic ritual is designed to remind employees of their public duties and obligations and thus part of their public jobs. And, if not and we are in Connick/Pickering, how disruptive of the workplace the court deems non-participation to be. Third, if this is compelled speech, can it really be that children in school enjoy greater protection against compelled speech than adults in the workplace?

Again, I do not know the answers, although I know I believe it should come out. Thoughts?

What SEALS Looks Like for a Compliance Scholar

The past three days were a whirlwind of fun, intellectual engagement, productive conversations, getting caught in a monsoon with friends while in business casual attire, and more at the SEALS annual meeting.

The first time I attended SEALS, I was invited to be in a discussion group on the topic of compliance. Since then, if I have attended SEALS it has been most often to participate in a group discussing various white collars matters. This year, however, my white collar friends focused on insider trading, which isn’t part of my current research agenda, so I thought I would forego the conference. But I received some other interesting invitations, and the conference was fantastic as usual.

On Wednesday, I participated in a Sexual Harassment Law discussion group. I’ve been testing out some methods for facilitating interdisciplinary work (more on that later), and the topic my Notre Dame colleagues and I have been focusing on is sexual harassment within organizations. This discussion group gave me an opportunity to discuss the two potential theses we have identified, and I received excellent suggestions from the group both during and after the session. On Thursday, I participated in a discussion group focused on The Ethics of Legal Education. This was definitely more of an opportunity to learn, as my own contribution was quite nominal, but there is very good work being done by my professional responsibility colleagues. I’m looking forward to reading some new books on the subject. On Friday, I participated in a Corporate Governance discussion group where I presented a paper I’m currently working on, and again I received helpful comments. The real benefit, however, of the discussion group model is the opportunity to hear what others are working on. It allows you to think about new ideas and expand your knowledge base. I have really come to love the model.

When I told someone what discussion groups I was participating in, I realized from his reaction that my mix of groups might look odd to some. But for me, this is what my compliance research does. It allows me to straddle a few scholarly areas in an effort to focus on the more precise research question of identifying mechanisms that will lead to the creation of inclusive, compliant, and ethical environments within organizations.

Now returning: NFL games, player protests, and presidential tweets

As if on cue, Thursday's NFL preseason games included several players kneeling, standing with a raised fist, or remaining in the locker room during the national anthem. The President responded on Friday with a tweet 1) criticizing the players for being unable to define what they are outraged about, 2) urging them"be happy, be cool" because they make millions doing what they love, 3) urging them to find another way to protest, and 4) commanding "stand proudly or be suspended without pay." (capitalization, etc., corrected).

The first point is untrue because the small handful of players who protest have been very clear and explicit that they are protesting police violence and the criminal-justice system. As this piece points out, the President recognized that in a June statement asking players to talk to him about people they believe were treated unfairly by the criminal justice system so he could pardon them. I derided that statement as incoherent; I should have added not serious.

The second point skates close to the line of saying that rich people should not be allowed to complain. This is ironic coming from a rich man who ascended to the presidency by complaining. So what is it about these wealthy people that should cause them to lose the right to complain? I cannot put my finger on it.

The fourth point brings us back to that state action argument: When a public official continually talks about a specific private dispute and urges a private actor to take some action, do we get to some point where that encouragement becomes overwhelming or coercive? Is it a question of quantity and specificity--how often and how specific? Does it change when it is the President doing the urging? (By the way, hat tip to Rishi Batra (Texas Tech) for suggesting that specificity might matter during our SEALS discussion).

The third point is interesting and touches on something we discussed in the Thursday panel. During pregame warm-ups on Thursday, several Eagles players wore t-shirts displaying various statistics about people of color and children in prison, one of the issues about which players have been protesting. Throughout this protest debacle, the NFL has been compared unfavorably with the NBA in terms of support for player protests, although the NBA has and enforces a rule requiring players to be on the court and standing at attention during the anthem. So why is the NBA not criticized, by the press or its players, for doing what the NFL is trying to do? Some of it is the perception of incompetence of NFL Commissioner Roger Goodell and the expressly plantation mentality of some owners.

But one possible reason (H/T to dre cummings of Arkansas-Little Rock for this point) is that NBA players have worn message t-shirts and otherwise expressed themselves during their highly visible pre-game warm-ups.* NBA players have an at-the-game, high-profile, many-people-watching forum to express their political messages, therefore less need to use the anthem as a protest vehicle. NFL warm-ups are not watched in the same way and not as intimate, and players have not tried to take extensive advantage of the alternative forum. Perhaps if they do and can, it will remove pressure on the anthem as a necessary expressive moment.**

[*] Prominent examples include LeBron James and others wearing t-shirts reading "I Can't Breathe." WNBA players have made extensive use of this forum.

[**] Or, the NFL being what it is, the league will shoot itself in the foot by issuing a diktat about players having to wear team gear during all on-field warm-ups.

Friday, August 10, 2018

Boardroom scene in "Succession"

A question for the Corp/Bus Orgs folks out there: What did people think of the boardroom scene in Episode 6 of Succession, showing a motion for a vote of no confidence against the CEO* and the rules of order and machinations going before and after it. Worth showing in class as an example of corporate governance and democracy?

Reminder: Hiring Committees

A reminder that you can announce information regarding your hiring committee either in the comments to the hiring committee post, or by sending me an email directly, at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu. The FAR forms have just been submitted and will be available to committees next week, so this is a good time to contribute information about your hiring committee.

Additionally, I've made two small tweaks on the spreadsheet.

First, there's now a column with links to websites that announce positions or websites that candidates must use to apply. (Enough posts were including this information that it made sense to include this on the spreadsheet as well.)

Second, there are now separate columns indicating whether committees are looking for entry-level candidates or lateral candidates. Providing the information in separate columns makes it easier for a candidate to focus on schools relevant to that particular candidate. Not all schools apply this information, but enough do that it makes sense to include it.

Failure, It Turns Out, is an Option, and a Pretty Good One Sometimes

In my last post, I promised to talk about fear not just in the horse but in the rider. The point, of course, has to do with the relationship of fear to learning. Kaci Bishop's (North Carolina) recently posted article, Framing Failure in the Legal Classroom, provides a nice segue. (H/T Paul Caron.) Failing, at least in the micro, is learning, and I agree with Professor Bishop's bottom line that academic and practicing lawyers tend not to be very good at connecting the subject and the predicate in those three words.

I have four very vivid memories of the subject of failure - in the abstract - coming up during my education and career. I'm paraphrasing most of it. The first was when I watched the moot court competition finals at Stanford. The esteemed federal Third Circuit judge A. Leon Higginbotham was a member of the panel. During the post-argument comments, he said something like "a well-prepared advocate can never lose; the client may not win, but the advocate never loses." The second was when I was interviewing for my first job out of law school (the Dykema firm in Detroit). One of the litigation partners said to me, "One of the things we have to do here is train people how to lose." The third was when I left the firm to join the law department at what was then AlliedSignal (now Honeywell). One of the recruiting documents I received was the 1991 annual report, which contained CEO Larry Bossidy's first letter to shareholders (he had just come over from General Electric where he was second in command to Jack Welch). The piece I remember most was about leadership and it went like this: "Of course there will always have to be leaders who make the final decision, but the tyrant in the corner office, the guy with all the answers, need not apply here." (This much appealed to me because, in 13+ years at the law firm, both as associate and partner, I rarely felt that I had any answers to much of anything.) The last was an interview with Steve Kerr, who had just been installed as GE's first Chief Learning Officer, on the tension between failure and Jack Welch's famous (or infamous) "stretch goals": namely, that if you set ambitious goals for people, you can't punish them if they fail to meet them.

At the risk of TMI, I'm sixty-four years old and still have the standard dreams about failure - for example, the one about missing the entire semester of a math class that met early on Tuesday mornings and now having to take the final. I started as a litigator, and it became clear that it was easier to give Judge Higginbotham's advice (particularly if you were the judge) than to take it. I took losing very personally. Looking back, and then considering what I internalized as failure even in the deal-making or business context, I see it as an illusion (or delusion) of one's own ability to control circumstances. You can't eliminate the fear; you have to learn to cabin it or manage it (and I think that is one of the points Professor Bishop is making).

I had a couple reactions that I'll talk about after the break.

First, I do agree that failing, in the micro sense, is integral to learning. I also think that Professor Bishop is correct in incorporating Carol Dweck's distinction between the fixed and the growth mindset. As I interpret it, it's the difference in the affective orientation to learning that precedes any learning. If you want to learn, you learn. If you don't want to learn, you don't. The fixed mindset is one that has given up on learning; the growth mindset invites it.

Second, Professor Bishop mentions classroom "failures" (i.e. that "law students have as a primary goal not embarrassing themselves in the classroom") but doesn't center her arguments on what I think is a particular aspect of law school culture: the difference between private failure and public failure. The fear of public failure is what I recall most vividly from the very first class on the very first day of law school forty-two years ago. It wasn't so much that I read the first case in the Dawson & Harvey contracts casebook (Groves v. John Wunder & Co.) and was mystified; it was that from the opening bell others in my 25-student small section appeared to understand it so well (yes, Robert Weisberg and Douglas Baird, I'm talking to you).

Dealing with public failure if you run a moderately interactive law school classroom is a challenge. It is hard to be nurturing when a significant aspect of the job is the theatrics of it all. If you believe in the non-paternalistic classroom, then you ought also to believe that your job as professor is to make the experience more compelling than what is available by way of internet, text, or Angry Birds. Nor is it easy. Some things students say or ask in class are misplaced or wrong or distractions. For each student that you try to accommodate gently, there's another one thinking you should have been more brutal.

My quibble, if I have one, with Professor Bishop's piece is that her focus on mindset is confined solely to that of the student. Just as psychoanalysts need to experience their own analysis to be able to guide anybody else, I don't see how there's going to be much change in the classroom if the fixed mindset is in the mind that is behind the podium. Over the years, one of the ways I have tried to put myself in the position of a fearful student has been to make myself learn in environments that are not my natural habitat. The three things I've tried to pick up over the last ten years are playing the piano (I never learned to play any musical instrument) and two athletic endeavors.

All my piano failures are private and relatively trivial, ego-wise. Not so the athletics. To put it bluntly, I think I'm pretty agile mentally, but I really, really suck as an athlete. My joke over the years is that I engage in athletic endeavors (golf, for example) for the massive doses of humility I get. I think, more seriously, that the activities I've selected in the last couple years force me to confront not only fear of failure, but physical fear, and, more importantly, the delusion of control. When you ride a horse in an indoor ring with other riders present, you are dealing with a thousand pound sentient being with a point of view, and one that often is not aligned with your own. Several years ago I decided to start taking fencing lessons (epee). I'm really bad. And your opponent is waving a long thin sword around, trying to jab you with it. Even with all the equipment, it can hurt. Every one of my opponents' touches is a public failure, but also a learning experience. Particularly when the opponent is a thirteen year old young woman who wins 10-2. It's really hard to learn when you are afraid!

Even with all of this, the performance art of teaching law students causes me, unfortunately, to get in touch more often than I should with my inner smart ass and outer stand up comic. (One only need look at some of the things some students say about me in their evaluations to know that I am no paragon of virtue when it comes to making students comfortable with "failure" in class discussion.) Fear has to have its source in evolutionarily adaptive instincts that get housed deep, deep in the reptilian and pre-reptilian parts of our brains. And, of course, what we are doing in class is the polar opposite. As the Carnegie Report observed,“[a]t a deep, largely uncritical level, the students come to understand the law as a formal and rational system, however much its doctrines and rules may diverge from the common sense understandings of the lay person.” They are doing that because that is what we are teaching them to do!

I should conclude by observing that, contrary to some popular memes, the vast majority of law professors I've met in the last fourteen years care very deeply about the quality and effectiveness of their teaching. Wanting to be better, wanting to learn, comes from the inside. And there are external sources of fear. Before tenure, there are student evaluations and classroom visits from tenured faculty that bear significantly on your career. Even after tenure, getting lousy evaluations is like being criticized as a corporate board member from the shareholder activists. It may not make a lot of difference, but it doesn't feel very good.

Perhaps the lesson from Professor Bishop's piece, at least for me, is to think about the failures that occur from my side of the podium. One of those might be the failure to heed at least two tenets of Kant's Categorical Imperative: (a) to act in every instance in way that you would legislate the rule of your action as a universal rule (for you aspiring legal philosophers, the source of Rawls's "veil of ignorance" as the basis for justice), and (b) to see every other person as an end rather than a means. To return to a theme of an earlier post, think about what that says about cold-calling on one student as a means of teaching another student!

Thursday, August 09, 2018

State action and NFL protests

This morning, I participated in a discussion group at SEALS on the NFL protests; other discussants were Todd Clark (UNC Central), dre cummings (Arkansas-Little Rock), Michael Green (Texas A&M), and Arnold Loewy (Texas Tech). For my piece, I threw out some arguments under which the NFL or its teams could be deemed to act under color of state law and thus become subject to First Amendment limitations. I do not believe the arguments are especially strong, but I flesh them out after the jump. I consider two circumstances: 1) the current one, in which the NFL is seeking to stop players from protesting. and 2) an Indiana proposal that would require teams to provide refunds to fans offended by players kneeling at Colts game (this was introduced in December 2017 and nothing has been done, so I doubt this remains a live possibility).

1) Close Nexus: Private actors act under color if they act under compulsion, coercion, or "overwhelming encouragement" of state officials. There is evidence that the league and the owners have acted out of fear of President Trump's tweets and general demagoguery and a desire to appease the President. Is that sufficient coercion or encouragement? Does it matter that the tweets are targeted specifically at the NFL and even particular players? I doubt this works, but the outline of the argument is there.

2) Symbiotic Relationship. A powerful (if questionably valid) basis is when there is an exchange of mutual benefits between the government and private actor, including where the government benefits from the unconstitutional conduct. The key here is the militarization of the NFL. The military and Department of Defense have paid the NFL millions of dollars to have the league promote patriotism and the military and player participation in the ritual is part of that.* The NFL gets a lot of money, the military and government is promoted and uses this as recruiting opportunities. To the extent those arrangements depend on a clean patriotic presentation and player protests interfere with that, perhaps limiting player protests could be seen as a way to maintain its arrangement with the military. We probably need to learn more about the deals between the NFL and DOD--what each party gets and what the league is expected to do as part of the deal. Again, this is tough, especially because some lower courts do not accept this as a valid test.

[*] On the radio program I did last month, former NFL player Joselio Hanson pointed out that the players remained in the locker room during the anthem prior to 2009. That change suggests a connection between player participation and the business deal between the league and the government.

The state action arguments work better as against the Indiana proposal, which will not become law in Indiana, nor will anything similar become law elsewhere.

3) The Indiana bill creates a close nexus, as the threat of monetary liability to the objecting fans compels or coerces the team to prohibit the players from protesting. Although the trigger for the monetary loss is a private complaint rather than a government-imposed find, the obligation of the teams to respond to the private complaint is government-imposed. In the same way that tort liability and a government fine are the same for state-action purposes, a compelled refund and government fine should be the same.

4) The Indiana bill resembles landlord ordinances. Landlords are threatened with fines or loss of license for having too many tenant 911 calls for disturbing the peace (including calls seeking help from domestic violence); the solution for landlords is to evict these tenants, prompting the tenants to refrain from calling 911, thereby increasing their vulnerability to violence. Although the eviction or threat of eviction comes from the private landlord, it is prompted by the threat of fines or loss of license if they do not evict. The same is going on here--the team is threatened with financial loss to the complaining fan, so it restricts the players' (constitutionally protected) conduct that might cause the team that loss. There is an extra player in the mix compared with the landlord situation; the latter has the government, the landlord, and the tenant, while this has the government, the team, the players, and the complaining fan. But again, there should be no difference between a fine and private liability when both are compelled by the government.

Tuesday, August 07, 2018

The First Day of Class - A Horse's Perspective

During the summers, I usually spend a lot more time around horses and dogs than I do around students (or any people, for that matter). I climbed on the back of a horse for the very first time almost to the day nine years ago at age 55, and life was never quite the same thereafter. And about a month ago, I became responsible up here in Michigan for the care and feeding of a Half-Arabian - the other half is Hackney - with the barn name Markie (registered name: EQL Mark of Mine), below right. (You can see the riding equivalent to a law student's first moot court oral argument here. Last year, after eight years of coaching, I got up the guts to do what is known as a schooling show. It demonstrates the reason for my own barn name - "Tighty Whitey". As I suppose often happens, my partner Markie saved my bacon. Here we are a year later and a little less tighty.)

Five minutes into the movie, he's beginning a "colt starting" class, in which horse owners are learning how to get horses who've never been saddled, much less ridden, to accept the rider. He narrates: "Colt starting is always interesting because most of the youngsters never been saddled, never had anyone on their back, or a bit in their mouth, so there’s a lot of fear in both the horse and the human."

Then the film cuts to his opening remarks to the owners who are themselves going to have to teach their horses:

“The way I do these colt classes, you guys, you’ll have to get ’em exposed to a lot of things that seem perfectly normal to you but it doesn’t seem normal to the horse.

“You walk up to ’em smelling like a Big Mac, you know, or somethin.’ Your diet is gonna make you smell different to the horse.

“And then you’re gonna tell the horse, ‘don’t worry, I want to crawl on you’ … in a similar posture to how a lion would attack and kill a horse. They jump right up in the middle of them and they reach their front claws around and as they’re biting down on their spine they’re cutting their throat with their claws. You’re asking the horse to let you be in that posture and crawl on him.

"And then about the time he says, ‘Alright, maybe,’ and then you say, ‘Oh one more thing. I want to strap some hides of other dead animals around you before I crawl on you.’

"Damn sure have to have some trust. He’s got to believe in you to let you do that. And amazingly enough, they’ll let you do it.”

I'm pretty sure there's a lesson there for all teachers, but particularly law professors facing a class of 1Ls on the first day. More on the rider's (i.e. my own) fear to come.

Monday, August 06, 2018

Two items on teaching law

Classes at FIU begin next Monday, so here are two items on what we teach.

Here are remarks by Max Stearns (Maryland, blogging at Blindspot) at a welcome event for incoming 1Ls at Maryland law. I pretty much agree with everything he suggests, with the small exception that study groups are not for everyone and I am more circumspect in recommending them.

Here is a summary (with video) of an interview by Justice Ginsburg for a Duke Law School event. One of her topics was recommending moot courts as part of legal education, both as a way to promote public understanding of the Court and a way to teach students to sharpen their arguments and positions. I do this as the end-of-semester projects in Civil Rights and Fed Courts, so I am glad to see recognition of its value.

There are, of course, other places to read about compliance, but I think the above three are a good starting point. As a side note, I’m excited to read this new article I saw in an SSRN blast last week, because it has the words “compliance” and “diversity” in the title (see here for context).

Friday, August 03, 2018

Liz Magill, Stanford Law Dean, to Become UVA Provost

Liz Magill, who succeeded Larry Kramer as the dean of the Stanford Law School in 2012, will leave to become the new provost at the University of Virginia. She will remain at Stanford until her successor is in place.

Her new boss will be UVA's new president, James E. Ryan, also a former law professor (most recently the dean of Harvard's Graduate School of Education).

Those interested in filling her shoes should contact Persis Drell, Stanford's provost, who is organizing the upcoming search.

What will you do when a client comes to you with a problem? Will you be ready? What approach will you take to solve it? Is knowledge of the law enough to prepare you to practice? Are you mindful? Are you creative?

Experts agree law students and lawyers need to be mindful and creative problem solvers. Many factors have coalesced to make these skills critical to the success of today’s law students and lawyers such as: critiques of the traditional law school format along with curriculum changes mandated by the American Bar Association (“ABA”), the downturn in the legal market and in the changing demographics of incoming law students, and dissatisfaction among employers in their recruits’ ability to solve problems independently and creatively, to name only a few.

Despite the importance of mindfulness, creativity, and problem solving to the practice of law, traditional law school courses or textbooks do not explicitly cover these topics. This book is intended to help you practice mindful lawyering, beginning in law school, to maximize your ability to creatively solve clients’ problems. It discusses the skills and qualities needed to succeed in law school and in practice to successfully serve clients. It will also enhance your ability to understand and retain the legal doctrine you learn in law school.

The introduction to this book in Part I provides an overview of the scope of the book and its learning objectives and outcomes. It provides a path for your journey to becoming a mindful and creative problem solver. Part II provides the scientific basis and need for mindfulness, and encourages you to embrace your law school experience mindfully. Part III explores what it means to be a creative problem solver, why creativity is important, and how to maximize your creative potential. Part IV explains the different stages of problem solving law students and lawyers can utilize to maximize their potential for success and why lawyers need to be problem solvers. Finally, Part V synthesizes mindfulness, creativity, and problem solving, including a capstone exercise to apply the concepts learned in the book; checklists to utilize; and additional resources you can consult for more information. The book’s organization into these different parts allows flexibility of use according to your needs.

Wednesday, August 01, 2018

The Ninth Circuit on Thursday affirmed the injunction prohibiting DOJ from enforcing an executive order and regulations stripping federal law-enforcement funds from sanctuary cities, in an action brought by San Francisco and Santa Clara.

1) The case was justiciable, considering both standing and ripeness. The plaintiffs had standing because they had policies in place that, under the executive order, would be a basis for withholding funds. That the regs might not be enforced did not eliminate the injury; it was enough that the plaintiffs' interpretation of the regs was correct and could subject them to consequences or to having to change their policies. The action also was ripe. The court pointed to statements by various Trump Administration officials warning about enforcement, with California and its municipalities as an express target, as well as a history of federal grants conditioned on compliance with certain immigration laws. The ripeness point prompted a dissent. Focusing on the order's requirement that any federal action be "consistent with law," the dissent argued that the counties do not face any imminent threat of loss of funds because they have not shown an intent to violate § 1373 and the EO did not order DOJ to enforce the funding regulations in a manner inconsistent with the law.

2) The court affirmed the injunction, but limited it to prohibiting enforcement against the plaintiffs and the State of California. While rejecting DOJ's argument that universal injunctions are per se improper, the court found that the plaintiffs did not offer sufficient evidence of an effect beyond themselves and the State. The court's analysis was inexact but it did hit on a situation in which an injunction should protect beyond the named plaintiffs. Santa Clara and San Francisco offered evidence that their law-enforcement budgets depend on money from the State, which gets some of its money from the DOJ grant program; complete relief for the plaintiff counties thus depended on the regs not being enforced against California.

But while appropriate, this should be a narrow and unique exception to particularity. And the court showed it did not recognize that narrowness when it remanded for the district court to allow the plaintiffs to offer evidence of a universal effect. Although not a party, California was a unique non-party because some of the money it would get from DOJ (and which it would lose under the regs) would be passed to the plaintiffs. No other sanctuary jurisdiction would, if stripped of funds, have the same effect on the plaintiffs' budgets; therefore, stripping funds from no other jurisdiction could render their relief less than complete. For example, if San Francisco does not get money from the State of Oregon or the City of Boston, then enforcement of the funding regs against those cities does not deny San Francisco complete relief.

One of Douglas Levene's comments in the earlier post captures my own bias perfectly: "I figure they are all adults and will get out of the class what they put into it."

Indeed, one of my lines on the first day of class, as I am walking through my own expectations of classroom protocol is the following: "Nobody in this building will care more about and work harder at leading you to water than I will, but nobody will care less than I about whether you choose to drink." That usually comes right before or after I tell them I don't care where they sit, how they take notes, or whether they surf the internet during class.

To be clear, I am not suggesting this is the way I would run a primary or secondary school or even an undergrad class. But I do believe pretty firmly that once you are a graduate student bound, even if prospectively, to a code of ethics and disciplinary rules and within three or four years of licensure and accountability by way of grievance or malpractice, you have first to be accountable to yourself and not to your professors. That includes deciding, in the face of the performance standards you don't control (like what counts toward getting a good grade), how you want to go about meeting the standards. That was the source of my nattering negativity about cold-calling. I believe oral participation in a first-year contract law classroom (as opposed to a legal practice skills class) is a means to an end, not an end in itself, and something of a paternal imposition on my part if I demand it without consent. My primary learning objectives are (a) how to translate real world narratives involving promises, commitments, and transactions into legal theories that produce legal consequences, and (b) how to use some of the rules within the contract law canon to achieve that. (Foolish Consistency is the Hobgoblin of Little Minds Disclaimer #1: I start the year with on-call "panels" that tend to fade out over time. Why bother at all? I don't know.)

Below the break, some positive thoughts about running a moderately non-paternalistic class. I will don my Kevlar "Jim Harbaugh khakis" and leave the comments open.

Seating charts. Why bother? There's a reason why Kingsfield is unrolling one at the beginning of The Paper Chase. It's so he can know where the student on whom he wants to focus his attention is sitting. If you don't really believe in cold-calling, then there is no reason at all to have one. Or, worse, it's just a pure power play. "I am the professor and can move wherever I want. You are the student and have to sit where I tell you."

I much prefer Howard Katz's suggestion in the comments to the earlier post. Our school issues the students name cards that even I can see when they are used up in the back row. Now, in the early days, when I'm still using the on-call panels, it means I have to spend a minute before class begins scanning the room to find where the six or seven students are perched. That gets pretty easy because, even without a mandatory seating chart, students tend to sit in the same place all semester. Foolish Consistency Disclaimer #2: Sometimes I will walk into class, not see very many name cards up, and announce that anybody without a name card showing is on call. This usually has the effect of causing the name cards to go up. I acknowledge, however, that this is my preference - wanting to know student names. I suppose, taking anti-paternalism to its extreme, it's really up to the student to decide whether the student wants me to know his, her, or their name.

Laptops. I acknowledge, with some reservations, the controlled studies indicating that as to certain matters, the mean performance of a population of students who take handwritten notes exceeds, to a statistically significant extent, the mean performance of a population of students listening to the same material but taking notes on a computer. Here are my reservations (with disclaimer that I am not an expert in the interpretation of statistical data - I have consulted with someone who knows a lot more about this than me and am waiting to hear back, so what follows could be wrong). First, the studies do not show what I think is a problematic counter-factual - how would the specific student taking notes one way in the study perform if the student took notes the other way? That is, the studies only speak to the average performance of populations, not to the impact of note-taking methodology on individual students. Second, in my quick look at the studies, I cannot see whether there was any evaluation of the homo- or heteroscedacity of the data. In other words, are the variances consistent across all sub-populations or do they vary? Do better students vary less than poorer students when changing note-taking styles?

My real problem with laptop bans, however, is again the paternalism of it all. I have not handwritten anything of passing importance in probably twenty-five years. If bored students are going to surf the internet on their laptops, and I ban laptops, they can use their phone or their Apple watches to play games, text, disturb other nearby students, or otherwise ignore me. Short of making the classroom door look like the security entrance at the airport, I think it's an illusion of control on the professor's part. (I am still waiting for laptop ban proponents to agree that they must deposit all electronic devices outside the faculty meeting room.)

I do do some things designed to encourage more thinking and less verbatim note-taking, whether by hand or keyboard. All Power Point slides are available on Blackboard from the beginning of the year (or from when I create it if I make up a new one). I audio record all of my classes and make the recording available through a link Media Services creates on Blackboard. I organize classes in units. Upon the completion of each one, I post my class notes on Blackboard as well. All of this is in the manner of "lead you to water."

Having thought this through as writing this post, however, I have decided to abandon my former "don't care if you drink" approach with disclosure regulation. Starting this fall, it's going to be something like this: "I don't care what your manner of note-taking is. Be aware that there are studies showing that the mean performance of a population of students who take handwritten notes exceeds, to a statistically significant extent, the mean performance of a population of students listening to the same material but taking notes on a computer. I do not know what that means for an individual student. I know that I would prefer to take notes on a keyboard, but you need to make your own decision about what is best for you."

Verbal interaction. I would agree that my classes tend to be more about what I have to say on a subject than what students have to say. I pose questions to the class or even to individual students all the time. I would agree with the Socraticists that I want each student in the class individually to be processing what the answer to the question should be. My own experience as a student, again, recalling from many years ago, is that I tuned out most of the student responses, focused on my own working through of the problem, and waited to see what the professor had to say about it. As a student, I certainly tuned out any student questions or comments that struck me as going far afield of the point being made.

I confess to not having a lot of patience merely to have students debate an issue capable of different outcomes depending on the rule applied or the manner in which a single rule gets applied. My consistent point is that what makes non-trivial lawsuits non-trivial is that there is sufficient play in the fact situation to point the case toward one analogous prototype or another. Hence my ubiquitous Venn diagrams of competing issues (the above picture on trying to figure out if a conditional promise creates a bargain or a gift being an example). Sometimes it takes one of those debates to demonstrate that play, but I don't believe that there are philosophically determinate answers in the Venn diagram overlap, so the debates quickly have diminishing pedagogical returns (at least in my view).

As I mentioned above, the "flipping the classroom" techniques look interesting as a way of promoting engagement without paternalism.

Evaluation. I do a lot of evaluation. All of the evaluation is completely open book and open note but must be completed individually (enforced solely by Honor Code commitment as to the quizzes). In first year contracts, there are eight units in the first semester and twelve in the second. In Business Entity Fundamentals, there are nine units. After each unit, I post an online multiple choice quiz that is generally due one week later. So by the end of the year, the contracts students will have done 200 multiple choice questions and the BEF students close to that many. There is an all-essay final at the end of each semester. The quizzes count one-third of the total grade in each semester. I design most of the quiz questions (particularly after the first couple quizzes) so that the student should be able to read the narrative and the call of the question and then think about what the essay answer would be before looking at the proffered answers and distractors.

The point is that I create all of the multiple choice and essay questions from my class notes. Hence, students who don't engage (whether orally or otherwise) in what is going on in the classroom are at a distinct disadvantage.

Dr. Richard Pan Sued for Blocking Users on Twitter

In early 2015, in response to the Disneyland measles outbreak in California, Dr. Richard Pan, along with other legislators, sponsored SB277, which removed California’s Personal Belief Exemption. While Dr. Pan was not alone in authoring the law – Senator Ben Allen was the other Senate author, Assembly Woman Lorena Gonzales on the assembly side, and there were quite a few sponsors – he was a lead figure, and as a doctor, his views carried weight with many of his colleagues. He became a special target for anti-vaccine activists angry at him.

Dr. Pan was the subject of many attacks, including racial slurs, death threats, and other varieties of personal harassment. Part of his reaction was aggressive blocking of anti-vaccine activists on his social media, twitter and facebook.

On July 27, 2018 Dr. Pan was sued by two anti-vaccine activists – Suzanne Rummel and Marlene Burkitt - for blocking them on Twitter. The activists, echoing the arguments in Knight First Amendment Institute v. Donald Trump, claimed that Dr. Pan’s twitter account is a public forum and that he discriminated against them based on his viewpoints.

As far as being blocked for being anti-vaccine, the suit likely has merit under Knight.While Knight is only a district court decision and is currently under appeal, it is thoughtful, and carries quite a bit of persuasive force. Dr. Pan is a public official, and should not block users based on content, even if he disagrees with them.

A counter argument is that there is a difference between political disagreement and scientific misinformation, but this is very murky grounds when it comes to public officials: most are not scientists, and at any rate, their twitter account is not where scientific truths are determined, and they should not be able to block users according to whether they see their views as truthful.

Dr. Pan does have a potential alternative argument, if the reason for blocking is not the plaintiffs’ anti-vaccine views. I have not seen the plaintiffs’ tweet: I have Ms. Rummel muted, and do not remember interacting with Ms. Burkitt on twitter. I have, however, seen Ms. Burkitt’s posts to Dr. Pan on Facebook, and they are often not only abusive, but actually threatening. Here are two examples:

And:

While a public official should not be able to silence an opponent in a public forum for a different viewpoint, there may be differences when someone is threatening the official. Even here, we need to be cautious. Public officials, by the nature of their role, should expect – and are expected to endure – a certain amount of abuse and attacks. But it’s not clear they need to interact with people who threaten them on Twitter. And there is a risk that preventing public officials from blocking those who harass and threaten can deter public officials from taking positions where the opposition is aggressive, and/or encourage direct harassment as a means of making public officials give up unpopular positions. That, too, can have negative implications for the public discourse.

At any rate, the lawsuit is worth following. Dr. Pan can, of course, solve the problem by unblocking the plaintiffs and muting them instead, something that Knight suggested was acceptable, since it allows users to interact with an account’s followers and participate in the discussion without the public official having to interact. Whether Dr. Pan decides to do that, or litigate on the grounds of harassment, the lawsuit can have important and general implications for public discourse.